What judicial philosophy should guide the Supreme Court's exercise of judicial review?

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pohnpei397 | College Teacher | (Level 3) Distinguished Educator

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The answer to this is, of course, a matter of personal opinion.  Different people will have different answers.  In my response to your question, I will give some reasons for each judicial philosophy so that you can choose for yourself which is more attractive to you.

One philosophy is the philosophy of judicial activism.  Some people like this philosophy because it allows the courts to safeguard the rights of the people.  When the Supreme Court engages in activism, it does not defer to Congress.  It aggressively strikes down laws that it finds unconstitutional, thus protecting us from government infringements on our rights.  

Another philosophy is judicial restraint.  Some people like this philosophy because it seems more democratic to them.  When the Court follows this philosophy, it lets the elected branches of government take the lead.  It only overrules them when they pass laws that are blatantly unconstitutional.  Letting the elected branches take the lead is more democratic (at least arguably) than having unelected judges being more aggressive about striking down laws.

We can also look at two other philosophies.  These philosophies are not opposed to the two already mentioned.  Instead, they are simply different.  They vary on a different axis than judicial restraint and activism.

One of these philosophies is the philosophy of strict constructionism and original intent.  Some people like this philosophy because they think it is more faithful to the Constitution.  They say that it looks only at the clear meaning of the Constitution based on the words of the documents and the intentions of those who wrote it.  By using this philosophy, they say, the Supreme Court is honoring the true meaning of the Constitution rather than inserting the justices’ own opinions into its decisions.

The other philosophy is that of loose constructionism and the “living Constitution.”  Some people like this philosophy because it allows us to change our basic laws as our country changes.  It does not force us to be bound by the thoughts of rich, white men who lived over 200 years ago.  In addition, they like it because they do not believe that it is really possible to know what the Framers meant when they wrote the Constitution.  It is not possible to know which of the Framers’ opinions we are supposed to try to determine and it is hard to know how to accurately understand what each of the Framers thought.

Having looked at this discussion you should be able to pick which philosophy or philosophies you think the Supreme Court should use.

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